Uganda v Gasigazi (Criminal Session Case 93 of 2020) [2023] UGHC 487 (7 August 2023)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE CRIMINAL SESSION NO. 0093 OF 2020 (Arising from Kisoro Criminal Case No. 0013 of 2020) (Arising from Kisoro CRB 218 of 2020)** 10 **UGANDA** :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: **PROSECUTION VERSUS GASIGAZI GODFREY** ::::::::::::::::::::::::::::::::::::::::::::: **ACCUSED** 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

# **JUDGMENT**

The Accused Gasigazi Geoffrey stands indicted with Aggravated Defilement Contrary to **Section 129 (3)** and **(4) (a)** of the **Penal Code Act**. The particulars giving rise to the indictment are that Gasigazi Geoffrey on 04/04/2020 at

20 Buturanya village in Kisoro District performed a sexual act with Irasubiza Esther a girl aged five years.

The Accused pleaded not guilty.

# **Representation.**

Mr. Ainomugisha Christopher (Senior State Attorney) appeared for the 25 Prosecution while Mr. Kibulirani Nicholas represented the Accused on state brief. The Assessors in this case were Ms. Zeridah Sendegeya and Mr. Rwangeyo Joseph.

At the commencement of this trial pursuant to **Section 66** of the **Trial** on **Indictment Act** medical evidence and other evidence in PF 24A were admitted as uncontested.

5 The report was to the effect that the Accused is an adult of sound mind and received as Exhibit P1.

# **The burden and standard of proof:**

This being a criminal case in which the Accused has pleaded not guilty the Prosecution has the burden of proving the case against the Accused beyond 10 reasonable doubt. The burden does not shift to the Accused person and the Accused can only be convicted on the strength of the prosecution case and not the weakness of the defence case.

[**See Sekitoleko versus Uganda (1961)] EA 531**.

The Accused doesn't have any obligation to prove his innocence and the onus is 15 on the Prosecution to prove each of the ingredients beyond reasonable doubt before it can secure a conviction.

# **[See Miller versus Minister of pensions (1947)] 2 ALLER 372]**.

# **Ingredients of the offence.**

- 1) That the victim was below 14 years of age at the time of commission of the 20 offence. - 2) That there was a sexual act performed on the victim. - 3) That it was the Accused who committed the offence.

# **a). Age of the victim.**

It is the evidence of Ndushimimana Rebecca (PW1) that Irasubiza Esther (PW2) 25 is her daughter and that she was born on the 06/04/2015 and aged 5 years on the 04/04/2020 at the time of the commission of the offence against her. To this 5 effect she tendered to Court a child health card (Immunization) that was received as Exhibit P2.

Irasubiza Esther (PW2) when she appeared before this Court stated her present age as being 8 years.

The medical examination of Irasubiza (PW2) in Exhibit P4 places her age at 4 10 years as of 05/04/2020.

The defence did not dispute the evidence of the Prosecution that Irasubiza Esther is below the age of 14 years.

This Court had the opportunity to view and observe Irasubiza Esther as she testified before it and I am sufficiently satisfied that she was a girl well below the

15 age of 14 years.

I therefore find that the Prosecution has proved beyond reasonable doubt that Irasubira Esther is a girl below the age of 14 years.

# **b). That there a sexual act performed on the victim**.

**Section 129 (7)** of the **Penal Code Act** defines a sexual act to mean (a) penetration 20 of the vagina, mouth or anus however slight of any person by a sexual organ or (b) the unlawful use of any object or organ by a person on another person's sexual organ and described a sexual organ as being a vagina or penis.

It is trite law that to constitute a sexual act, it is not necessary to prove that there was deep penetration. The slightest penetration is sufficient.

# 25 **(See Wepukhulu Nyuguli versus Uganda SCCA No. 0021 of 2001).**

5 Proof of a sexual act is normally established by the victim's evidence, medical evidence and any other cogent evidence.

It is the evidence of the victim in this case Irasubiza Esther (PW2) that the Accused called her and took her to his bedroom placed her on his bed, removed her dress, knickers and then removed his trouser after which he slept on top of her and had 10 sexual intercourse with her (with leave of Court she drew on a sheet of paper what clearly resembled a male sexual organ) and it was received as Exhibit P2. When shown the pictograms on PF24A she selected the male organ as being what

she had drawn on Exhibit P2 stating that the Accused placed that thing on her private parts pointing at the female organ on PF24A. It is the evidence of PW2 15 that she was not in the Accused's house for a long time and that she did not bleed.

Ndushimimana Rebecca (PW1) and Urimwiza Eunice (PW3) both testified that they examined Irasubiza Esther (PW2) after she told them that the Accused had engaged in sexual intercourse with her and according to PW1 Irasubiza (PW2) had whitish substances on her vagina that were liquid, thick and stretchy like

- 20 those coming from a man while PW3 described what she found upon examining Irasubiza (PW2) as being sperms of a man white in colour and stretching on her thighs with fluids on her vagina and that her vagina appeared to be wide not tight like for children. PW3 also asserted that she was a woman of experience and knows sperms. She also stated not observing any injury to her private parts. They 25 both testified that PW1 did not take a bath until after she was examined the - following morning at Kisoro Hospital.

The medical examination report in Exhibit P4 revealed that the victim Irasubira (PW2) had a whitish, milky discharge and her hymen was raptured most likely

5 by penile penetration and that this could have been a long time ago as there was no obvious bleeding.

The evidence of Irasubira (PW2) the victim in this case was consistent and she described ably the manner in which the sexual assault upon her was committed. She was able to identify the sexual organs involved on the part of the assailant

- 10 and on her body, PW1 and PW3 examined her not long after the assault and found traces of substances that according to the experience of PW3 were sperms unfortunately the medical report in Exhibit P4 though corroborating the whitish milky discharge on the genitals of PW2 did not elaborate on the nature or cause of the same. - 15 I am none the less satisfied from the evidence of the victim Irasubiza (PW2) together with PW1 and PW3 that there was a sexual act performed on Pw2 as corroborated in Exhibit P4.

I therefore find that the Prosecution has proved beyond reasonable doubt that a sexual act was performed on the victim Irasubiza Esther.

# 20 **c). Participation of the Accused**.

It is the evidence of the victim Irasubiza Esther (PW2) that she knows the Accused and he is called Geoffrey and that he lives near them and their homes are separated by only a path. It is her evidence that as she was playing with Maureen, Gerishama and Pamela the Accused called her and took her to his bedroom that

25 has a mattress, bed sheets and blanket. That the Accused placed her on his bed, removed her dress, knickers and then removed his trouser and slept on top of her 5 and had sexual intercourse with her. That after the Accused told her that if she speaks about what he had done to her he would kill her.

It is her evidence that when she left the home of the Accused she told her friends Maureen, Gerishama and Pamela what the Accused had done to her and that she later also informed her grandmother and her mother of the same.

10 The evidence of Irasubiza (PW2) was given in a cogent and consistent manner. She appeared to have been seized with fear upon seeing the Accused in the dock as she began her testimony but was able to quickly overcome her fear and testified calmly and freely. I did not detect any deceit in her body language.

I find her testimony to be corroborated by that of her mother Ndushimimana

15 Rebecca (PW1) and grandmother Urimwiza Eunice (PW3) who both testified that the victim (PW1) narrated to them that she had been involved in a sexual act with the Accused and when they examined her they found whitish sticky fluids on her vagina and thighs.

It is a rule of practice for the Courts not to convict an Accused on uncorroborated 20 evidence of a victim of a sexual nature. Corroboration is also required as a matter of practise when relying on the testimony of a single identifying witness.

# **(See Chila & another versus R [1967] EA 722)**.

The Supreme Court also in **Remigious Kiwanuka** versus **Uganda SCCA No. 0014** of **1993** held that it is settled law in sexual offences that though corroboration of

25 the Prosecution evidence is not essential in law, it is in practise looked for, and it is the established practise to warn the Assessors against the danger of acting upon uncorroborated testimony.

- 5 Irasubiza (PW2) struck me as being truthful. She denied in cross-Examination that she was told by anyone what to come and say in Court against the Accused. The fact that the victim immediately on exiting the Accused's house told her playmates what the Accused had just done to her and later immediately upon the return of her grandmother in PW3 quickly narrated her ordeal at the hands of the 10 Accused and later her mother in PW1 clearly establishes a pattern that she was consistently naming the Accused as the man who had unlawful sexual intercourse with her. The Accused is also a neighbour to the victim (PW2) and a relative. I have no doubt that the Accused is well known to her. Indeed the Accused did not - 15 The physical examination carried out by PW1 and PW3 corroborates the testimony of PW2 that she had been engaged in sexual intercourse with the Accused. PW3 stated that she was a woman of experience and what she observed on the thighs and genitals of the victim (PW2) were sperms. The medical examination report in Exhibit P4 clearly indicates that there was a whitish milky 20 discharge from the genitals of the victim though it falls short on providing scientific proof of what exactly the whitish milky discharge was.

It is settled law that this Court can rely on the evidence of a single identifying witness without corroboration if it is satisfied that the witness was truthful and there is no possibility of error in the identification of the perpetrator. It is also 25 settled law that this Court can rely on the evidence of a victim in a sexual offence without corroboration if it is satisfied that the witness is truthful.

# **See 1. Chila versus R (Supra)**

dispute the fact that the victim knew him.

# 5 **2. Abdala Bin Wendo & another versus R [1953] EACA 166**.

In the present case I am sufficiently satisfied that the Accused was well known to the victim (PW2) and the offence was committed in broad day light with no possibility of any error in the identification of the Accused.

I have also found sufficient corroboration in the testimony of PW1 and PW3 10 together with the medical report in Exhibit P4.

I do not accept the defence of the Accused that he did not engage in sexual intercourse with the victim Esther Irasubira but that rather the allegations against him are fabricated because of a family dispute when his elder brother Karuhige Milton assaulted his wife Mukabalinda Annet and was supposed to 15 refund her UgX 120,000/= that she had spent pursuing her case but that he did

not make this refund thereby causing enemity between them.

I am persuaded that this defence is false and an afterthought. The defence did not put this allegation to any of the Prosecution witnesses nor did the Accused raise this while he was still in custody with the Police.

20 I reject this defence as being false and coined to tarnish the image of the Prosecution witnesses.

The defence of alibi that the Accused has attempted to raise has been sufficiently rebutted by the Prosecution evidence and he has been placed at the scene of crime committing the crime I so find.

25 After considering the evidence adduced by the Prosecution and the defence together and in full agreement with the Assessors it is my finding that the 5 Prosecution has successfully proved its case beyond reasonable doubt and I accordingly hereby find the Accused guilty as indicted of the offence of Aggravated defilement Contrary to **Section 129 (3)** and **(4)** of the **Penal Code Act** and convict him of the same.

Before me,

10 …………………………… **Samuel Emokor**

**Judge 07/08/2023**.

15